What Does a Court Look for When Deciding Child Custody?

Pursuant to Colorado Statute, “custody,” or “child custody,” is now called “parental responsibilities.” Prior to the terminology change which went into effect in 1999, the familiar term custody was used. Custody can be divided up into two primary categories, specifically physical custody and legal custody. Physical custody relates to which parent has a child when, including which parent the child might primarily live with. Legal custody relates to the legal right to make major decisions for a child. These decisions can include medical, educational, and general welfare decisions.

In any Colorado child custody case, or divorce case with children, the optimal conclusion would be for the parents to agree not only on a comprehensive visitation schedule, but also to a joint plan for deciding things such as which school the child will go to or who the orthodontist will be when it comes time to get braces. Though a good portion of child custody disputes to settle without the parties ever having to undertake a full blow evidentiary hearing in front of a judge, many do not. When faced with the prospects of a court hearing, or perhaps a custody evaluation from an expert, it’s advisable to be aware of what the court looks for when making determinations of parenting time and decision-making. The primary statute judge’s look to when allocating child raising rights and duties in Colorado Revised Statues 14-10-124. Section 124 sets forth the “best interest” standard most people who have dealt with child custody issues have heard of.

Though most lay people believe “best interest” is derived from a common sense analysis of what’s best for a child, the reality is that what is deemed “best” for a child is going to be subjective to each parent’s opinions, which may differ, or to the judge’s beliefs, which may differ from both parents’. Rather than predicating child custody determinations on each individual judge’s subjective viewpoint on child rearing, Section 14-10-124 sets forth a list of specific factors a court is required to look at when making determinations of both parenting time and decision-making. Family law attorneys are aware of these factors and parents should be, too.

C.R.S. 14-10-124 (1.5)(a) indicates that a court should look at the following 9 factors related to allocation of parenting time:

Both parents’ wishes related to parenting time;

The child’s wishes related to visitation, if that child is old enough and mature enough to express a reasoned preference.

The relationship between the child and each parent, his or her siblings, and other significant relationships of the child which may “significantly affect the child's best interests.”

The child's adjustment home, school, and community.

The parents’ and child’s physical and mental health (a disability cannot be the sole basis to impede parenting time).

The ability of each parent to foster a positive relationship and contact between the child and the other parent.

Whether the pattern of past involvement of the parents with the child is reflective of a system of values, time commitment, and mutual support.

The physical proximity of the parents’ homes to each other as might impact parenting time and the child’s needs.

Each parent’s ability to place the needs of the child over his or her own.

C.R.S. 14-10-124 (1.5)(b) sets forth that, in addition to the parenting time factors set forth in (a), a court should look at the following factors when allocating decision-making responsibilities:

Evidence of the parents’ ability to make joint decisions and cooperate with each other regarding such.

The past pattern of involvement tied into values, time commitment, and mutual support and whether such demonstrates that the parents have the ability to make joint decisions which promote “a positive and nourishing relationship with the child.”

Whether joint decision-making on some or all major issues will promote more frequent contact between the child and each parent.

Statute does not indicate that one factor is more important than the other. Regardless, the reality is that courts are generally going to put a greater weight on certain factors depending on the circumstances presented in each case. When dealing with issues of allocating parenting time or primary residence, the court is certainly going to pay more attention to the past pattern of involvement and time commitment, coupled with the child’s adjustment to his or her home than the other factors. When looking at allocating parental responsibilities regarding the making of major decisions, a court is going to not only look at involvement, but also each parents ability to place the child’s needs above their own and the ability of both to work together. One of the critical factors for either a parenting time or decision-making analysis is a parent’s ability to foster a relationship between the other parent and the child. A parent who demonstrates a pattern of trying to marginalize the other parent’s time with the children, role in their lives, or the other parent’s ability to take part in the making of decisions runs the risk of negatively impacting their own case, which could even include less parenting time or loss of residential custody. Given the current systematic theme of equal parenting time and joint decision-making which permeate cases today, most child custody attorneys know just how important it is to demonstrate the ability to to value the relationship between the other parent and the child.

In any case, the judge will ultimately determine which factors weigh most heavily in his or her decision. A judge in an Douglas County child custody case might find certain factors much more relevant that a judge in an Adams County case. Furthermore, two judges presented with identical facts might come to completely different conclusions based on their assessments of “best interest” and C.R.S. 14-10-124. Given the array of possible outcomes, C.R.S. 14-10-124 should be treated as a framework for structuring a case, with the understanding that a judge’s discretion will ultimately control the outcome.

His passion and ferocity kept me going through this long ordeal.When I first came to Plog & Stein it was simply discuss the renegotiation of child support. Little did I know that within 72 hours I would be retaining Steve Plog for a custody battle. His passion and ferocity kept me going through this long ordeal. I have recommended him to my friends and I would recommend him to anyone with who wants honest and effective representation. Carolyn

★★★★★

I recommend Sarah and the attorneys at Plog & Stein to anyone that has these types of family issues and need strong, knowledgeable representation.I am thankful for the job Sarah McCain did for me in my fight with my ex-wife for visitation rights with my daughter. Sarah and the team at Plog & Stein handled my case in an efficient, affordable, and professional manner. Sarah negotiated a new parenting plan as well as acceptable visiting rights and even a favorable modification in my child support. I recommend Sarah and the attorneys at Plog & Stein to anyone that has these types of family issues and need strong, knowledgeable representation. Tom

★★★★★

At the end of the day he was able to produce a settlement that was fair to both parties.I highly recommend Stephen Plog for anyone in need of a top notch domestic relations attorney. After a 27 year marriage, Stephen represented me in a complicated and sometimes bitter divorce with many unique challenges. At the end of the day he was able to produce a settlement that was fair to both parties but limited my alimony payments to only 3 years. He is smart, cuts to the chase, knows the court system in the Denver metropolitan area and can be trusted to get his clients the best possible settlement. Neal

★★★★★

Their service was outstanding, with prompt responses to all of my questions.Sarah McCain and Plog & Stein were wonderful to me during such a difficult time in my life. Their service was outstanding, with prompt responses to all of my questions and creative ideas throughout the proceedings to help things go smoothly. Sarah's compassion, patience, and expertise were especially invaluable to me. I highly recommend them. Sandy

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation.

This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

We serve clients throughout the State of Colorado including, but not limited to, those in the following localities: Denver County including Denver; Arapahoe County including Aurora, Centennial, Greenwood Village, and Littleton; Broomfield County; Douglas County including Highlands Ranch, Parker, Castle Rock, and Franktown; Jefferson County including Lakewood, Arvada, Wheat Ridge, and Golden; Adams County including Brighton, Westminster, Northglenn, and Thornton; Boulder County; Elbert County including Elizabeth and Kiowa; El Paso County; Weld County; Larimer County.